What exactly has the Commission decided?
She gave her blessing on Wednesday evening to the plans with which Poland hopes to receive 35.4 billion euros from the European Recovery Fund. This has been negotiated between Brussels and Warsaw for over a year, the accompanying documents add up to over 300 pages, so the Commission did not act overnight. Almost half of the money goes to sustainable energy, cleaner transport and the renovation and insulation of houses. This makes the Polish recovery plan the most ambitious in Europe in terms of the environment. It is now up to the European finance ministers to weigh the positive opinion of the Commission. If they take over, the billions can flow to Poland from the end of this year.
That fits in nicely with Commissioner Timmermans’ Green Deal, so why the fuss?
In order to be entitled to money from the European Recovery Fund (a total of 750 billion euros), EU countries must meet all kinds of conditions. The EU wants certainty that the billions do not disappear in party political or Mafia pockets and that requires independent judges. The Polish government has done its utmost in recent years to fire or suspend those very people; judgments of the European Court of Justice leave no room for doubt. The Commission is demanding that this end: Poland must dismantle the controversial Disciplinary Chamber for the Judiciary (a pro-government club) and suspended judges must be given a second chance.
Commissioners Timmermans (Green Deal) and Vestager (Competition) did not go far enough, as they voted against the Commission proposal. Three other commissioners expressed great concern. That is not enough to block the proposal, but such resistance in the Commission is exceptional. Critics argue that last year the European Court ordered Poland to immediately reverse the suspension of judges by the Disciplinary Chamber. A resit as proposed by the Commission is less far-reaching, offers no certainty to the judges in question and the procedure can take a year and a half. In short: the Commission does not take the Court seriously.
Who is right: Von der Leyen or Timmermans?
According to the optimists Commission President von der Leyen. They see the Commission’s demands as the start of real change in Poland. At first Warsaw did not want to make any concessions on the rule of law, the Disciplinary Chamber was desperately needed to purge the judiciary of old communist influences. Now Warsaw agrees to the terms of the Commission. Visiting Polish President Duda and Prime Minister Morawiecki on Thursday, von der Leyen said all wrongly dismissed judges must have their jobs back by the end of 2023.
The pessimists see the conditions as a wax nose. The Disciplinary Chamber is being replaced by another, similar institution, suspended judges are still out of work and the rest of the rotten Polish justice system will not change. Prime Minister Morawiecki said on Thursday that the Polish rule of law is not under pressure at all.
The fact is that the criteria of the recovery fund are not one-size-fits-all and comprehensive. They were never intended that way: by order of the member states, the demands are aimed at safeguarding the EU’s financial interests, not at a complete reform of the Polish rule of law. The fact is that Poland’s role in the EU has changed since the Russian invasion of Ukraine. It is no longer the obstinate troublemaker, but the driver of a hard line against Russia. Moreover, the Member State where millions of Ukrainian refugees are received. That has changed the dynamics between Brussels and Warsaw and helps open the money tap. ‘Ugly realpolitik’, according to a concerned EU official.
Can Poland now continue to undermine the rule of law undisturbed?
No. Firstly, the money from the recovery fund is given little by little as the agreements are fulfilled. If Poland does not do this, the flow of money will stop. Reimbursement of subsidies is also possible. Second, other means of pressure on Poland will continue to exist: criminal proceedings in the Court, discussion on Poland’s disenfranchisement of the EU’s voting rights, and the annual rule of law review. Finally, the criticism from the Commissioners, judges and MEPs means that the Commission will keep a close eye on Poland.